By: Steven M. Williams
Over 2,200 lawsuits were filed in 2018 against retailers and other companies who do business with the public because their websites were allegedly not accessible by persons with disabilities. While I am not currently aware of any landlord who has been sued, there is no reason to believe that landlords will not be targeted in such lawsuits as well.
The Americans with Disabilities Act (ADA) prohibits the exclusion, segregation, and unequal treatment of individuals with disabilities. These requirements apply to businesses and nonprofit service providers that are “public accommodations.” Public accommodations are private facilities that are open to the public, such as restaurants, retail stores, hotels, movie theaters, private schools, and landlord’s rental offices.
Over the past several years, courts have struggled with the question of whether company websites are also public accommodations. Since 2015, many courts have determined that websites are, in fact, public accommodations that must be accessible to the disabled. Unfortunately, there is little guidance from the Department of Justice (the federal enforcement agency under the ADA), and there are no current regulations that spell out what needs to be done to ensure that websites are accessible.
Nevertheless, landlords should take action to protect themselves before a lawsuit is filed. Hiring an IT consultant to audit your website is a great first step. The consultant can identify accessibility issues, recommend solutions, and work with you to implement them. Landlords should also become familiar with the World Wide Web Consortium’s Web Content Accessibility Guidelines (WCAG). In the absence of any federal guidance, WCAG may be the best indicator of what standards of accessibility courts adopt.
Given the lack of certainty in this new area of litigation, the increasingly important role that internet access plays in commerce, and the uptick in litigation involving website accessibility, it is crucial that landlords take action now to prevent substantial litigation costs and liability later.
